Virender Singh vs Ran Singh And Ors
2024 Latest Caselaw 20155 P&H

Punjab-Haryana High Court

Virender Singh vs Ran Singh And Ors on 13 November, 2024

Author: Pankaj Jain

Bench: Pankaj Jain

                                   Neutral Citation No:=2024:PHHC:148075




[121]       IN THE HIGH COURT OF PUNJAB AND HARYANA
                      AT CHANDIGARH

                                     CR-4085--2022
                                     Date of Decision : 13.11.2024


Virender Singh                                                   ...Petitioner

                                    versus

Ran Singh (since deceased)
through his LRs and others                                       ....Respondents


Coram :     HON'BLE MR. JUSTICE PANKAJ JAIN


Present:    Mr. Arun Kumar Singal, Advocate
            for the petitioner.

            Mr. Kshitij Sharma, Amicus Curiae
            for the respondents.

            ***

PANKAJ JAIN,
       JAIN J. (ORAL)

[1] While issuing notice of motion on 23.09.2022, the following

order was passed:-

" By way of this Revision Petition petitioner seeks setting aside of orders dated 4.10.2021 (Annexure P P-5);

5); dated 3.12.2021 (Annexure P-

P

6); and dated 3.8.2022 (Annexure P P-7)

7) passed by the learned Civil Judge (Junior Division) Bahadurgarh by which the learned Court is stated to have again started the process of determining the share of each party for the purpose of passing preliminary decree in a suit for partition despite the fact that preliminary decree has already been passed in favour of the petitioner/plaintiff titioner/plaintiff herein and against the defendant by the Additional Civil Judge (Senior Division) Bahadurgarh on 13.3.2006 (Annexure P-1).

Counsel for the petitioner states that this preliminary decree has attained finality between the parties vide jud judgment dated 20.3.2008

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(Annexure P-2)

2) passed by the Additional District Judge, Jhajjar; and appeal against the final decree was remanded back by the learned Additional District Judge, Jhajjar vide judgment dated 19.8.2019 (Annexure P-4)

4) as it was not in consonance with the preli preliminary minary decree. Counsel for the petitioner further submits that once the preliminary decree has attained finality and shares of the parties have been determined, same are not open for re re-determination.

determination. Reliance has been placed upon judgment of Hon'ble Supre Supreme Court in Venkata Reddy and others v Pethi Reddy 1963 AIR (SC) 992.

Notice of motion for 20.1.2023.

Till then proceedings before the trial Court shall remain stayed."

[2] Despite service, none has opted to appear on behalf of the

respondents.

[3] Mr. Kshitij Sharma, Advocate Advocate, was appointed as Amicus

Curiae. He submits that once a preliminary decree has attained finality,

the Court while passing final decree cannot be allowed to go behind the

preliminary decree. As the preliminary decree having at attained tained finality,

amounts to declaration of rights to shares of each co co-owner.

owner. He further

places reliance upon 'Shub 'Shub Karan Bubna @ Shub Karan Prasad

Bubna versus Sita Saran Bubna and others', 2009(4) RCR (Civil) 304,

wherein it has been held as under:-

under:

"4. Partition' is a re-distribution distribution or adjustment of pre pre-existing existing rights, among co-owners/coparceners, owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty. A partition of a property can be only among those having a

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share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. 'Separation of share is a species of 'partition'. When all co co-owners owners get separated, it is a partition. Separation of share's refers to a division where only one or only a few among several co-owners/coparceners owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother. In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff's share in the suit properties, but also division of his share by metes and bounds. This involves three issues: (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether hether he is entitled to the relief of division and separate possession; and (iii) how and in what manner, the property/properties should be divided by metes and bounds?

5. In a suit is for partition or separation of a share, the court at the first stage decides whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as 'decree' under Order 20 Rule 18(1) and termed as 'preliminary decree under Order 20 Rule 18(2) of the Code. The conse-

cons quential division by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calcu-

calc lations tions and considering various permutations/combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject matter of the final decree under Rule 18(2). The question is whether the provisions of Limitation Act are inap inapplicable plicable to an application for draw-

dra ing up a final decree. "

[4] After carefully going through the records of the case and

hearing the counsels and guided by the observations made by the Supreme

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Court in 'Shub ' Bubna's case Karan Bubna @ Shub Karan Prasad Bubna

(supra) wherein, the Supreme Court observed as under:

under:-

"9. The following principles emerge from the above discussion regarding partition suits:-

9.1) In regard to estates assessed to payment of revenue to the Government (agricultural land), the court is required to pass only one decree declaring the rights of several parties interested in the suit property with a direction to the Collector (or his subordinate) to effect actual partition or separation in n accordance with the declaration made by the court in regard to the shares of various parties and deliver the respective portions to them, in accordance with section 54 of Code. Such entrustment to the Collector under law was for two reasons. First is tha thatt Revenue Authorities are more conversant with matters relating to agricultural lands. Second is to safeguard the interests of Government in regard to revenue. (The second reason, which was very important in the 19th century and early 20th century tury when the Code was made, has now virtually lost its relevance, as revenue from agricultural lands is negligible). Where the Collector acts in terms of the decree, the matter does not come back to the court at all. The court will not iinterfere nterfere with the partitions by the Collector, except to the extent of any complaint of a third party affected thereby.

9.2) In regard to immovable properties (other than agricultural lands pay-

pa ing land revenue), that is buildings, plots etc. or movable pr properties:

(i) where the court can conveniently and without further enquiry make the division without the assistance of any Commissioner, or where parties agree upon the manner of division, the court will pass a single decree

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comprising the preliminary decree declaring the rights of several parties and also a final decree dividing the suit properties by metes and bounds.

(ii) where the division by metes and bounds cannot be made without further inquiry, the court will pass a preliminary decree declaring the rights of the parties interested in the property and give further directions as may be required to effect the division. In such cases, normally a Commissioner is appointed (usuall (usuallyy an Engineer, Draughtsman, Architect, or Lawyer) to physically examine the property to be divided and suggest the manner of division. The court then hears the parties on the report, and passes a final decree for division by metes and bounds.

The function of making a partition or separation according to the rights declared by the preliminary decree, (in regard to non non-agricultural agricultural immovable properties and movables) is entrusted to a Commissioner, as it involves inspection of the property and eexamination xamination of various alternatives with reference to practical utility and site conditions. When the Commissioner gives his report as to the manner of division, the proposals contained in the report are considered by the court; and after hearing objections to the report, if any, the court passes a final decree whereby the relief sought in the suit is granted by separating the property by metes and bounds. It is also possible that if the property is incapable of proper division, the court may ay direct sale thereof and distribution of the proceeds as per the shares declared.

9.3) As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until partition, that is division by metes and bounds, takes place by passing a final decree. An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of the preli preliminary minary decree, is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of Limitation Act). It is only a reminder to the court to do its duty tto o appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion. "

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[5] In the present case, preliminary decree already stands

passed. Plaintiff has been held entitled to separate possession to the

extent of 17/44th share of suit land. The Court has to proceed further to

divide the share by metes and bounds by passing a final decree.

[6] This Court finds that the approach of the Courts below being

in the teeth of law laid down by Supreme Court cannot be sustained.

[7] In view of above, present revision petition is allowed..

Impugned order dated 04.10.2021 (Annexure P P-5),

5), that dated 03.12.2021

(Annexure P-6) P 6) and that dated 03.08.2022 (Annexure P P-7) are hereby set

aside.

[8] Learned Trial Court is ordered to proceed to pass final

decree strictly in terms of procedure as explained in ''Shub Shub Karan

Bubna's case (supra) in accordance with Bubna @ Shub Karan Prasad Bubna's

law.

[9]           Disposed off accordingly.



                                                       (PANKAJ JAIN)
                                                          JUDGE
13.11.2024
'R. Sharma'

                     Whether speaking/ reasoned   :    Yes/No
                     Whether reportable           :    Yes/No




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